An Ethical Paradigm for Sex Offender Treatment: Response to Glaser

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An Ethical Paradigm for Sex Offender Treatment: Response to Glaser
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  Western Criminology Review 6(1), 145-153 (2005) Commentary An Ethical Paradigm for Sex Offender Treatment: Response to Glaser Jill Levenson  Lynn University David D’Amora Center for Treatment of Problem Sexual Behavior  _____________________________________________________________________________________________ ABSTRACT This paper responds to the recent article Therapeutic Jurisprudence: An ethical paradigm for therapists in sex offender treatment programs, in which the author argued that sex offender treatment is antithetical to the traditional values and ethics of the mental health professions. This paper will argue that sex offender treatment does in fact occur in a context that is consistent with the ethical codes of mental health professions, including APA and NASW.  Evidence countering Glaser’s six examples of ethical breaches will be offered. Finally, this paper will discuss the existing published code of ethics that pertains specifically to the treatment of sex offenders. Ultimately, we suggest that current practices are already very much in line with Glaser’s therapeutic jurisprudence model. KEYWORDS:  therapeutic jurisprudence; sex offender treatment; ethics; ethical paradigm; mental health ethics; court ordered therapy.  _____________________________________________________________________________________________ In his recent article Therapeutic Jurisprudence: An  Ethical Paradigm for Therapists in Sex Offender Treatment Programs , Bill Glaser argued that sex offender treatment is antithetical to the traditional values and ethics of the mental health professions (Glaser 2003). Specifically, he stated that “staff in such  programs have been encouraged to breach traditional ethical codes of mental health practice” and that such  programs “require therapeutic staff to explicitly and uncompromisingly adopt particular values and  practices…which cannot be reconciled with traditional mental health ethics in any way” (Glaser:144). Glaser further asserted that “sex offender treatment programs remain a form of punishment,” and he ultimately attempted to design an ethical code that applies the  principles of therapeutic jurisprudence to sex offender treatment. This paper will argue that sex offender treatment does in fact occur in a context that is consistent with the ethical codes of mental health professions. Two of the largest existing professional organizations, the American Psychological Association (APA) and the  National Association of Social Workers (NASW), will  be cited as examples. Evidence countering Glaser’s six examples of ethical breaches as listed below will be offered. Finally, this paper will discuss the existing code of ethics that pertains specifically to the treatment of sex offenders, which has been established by the Association for the Treatment of Sexual Abusers (Association for the Treatment of Sexual Abusers 2001). TREATMENT OR PUNISHMENT? Contemporary jurisprudence recognizes the need for an interdisciplinary response to crime, and courts have increasingly come to rely upon the collaboration of  judges, court personnel, probation officers, and treatment providers (National Criminal Justice Reference Source 2003). In response to the problem of sexual violence, states across the U.S. have instituted  policies that allow for a combination of punishment, management, and rehabilitation for sexual offenders. Examples of such policies include civil commitment, community notification, registration, and mandatory community based treatment, which are designed to  promote rehabilitation and community safety simultaneously.  Non-voluntary treatment is not exclusive to sex offenders. Courts and clinicians have long recognized that some individuals, especially those suffering from addiction or mental illness, are unlikely to recognize their symptoms and seek treatment for their problems. When such disorders go untreated, they can lead to harm to self or others, or to crime. Similarly, courts acknowledge that in cases of interpersonal violence, it is common for denial, entitlement, and resistance, as well as shame, fear, and family loyalty to preclude the voluntary initiation of services for both victims and  perpetrators. Drug courts and mental health courts are   An Ethical Paradigm for Sex Offender Treatment 146 increasing in numbers across the U.S., and domestic  batterers and child abusers are commonly court-ordered to treatment by criminal and civil courts alike. These alternative sentencing approaches are intended to emphasize rehabilitation rather than punishment, and to divert cases away from the overburdened criminal  justice system. Glaser (2003) rightly notes that an important distinction exists between punishment (an authority’s infliction of a penalty) and treatment (an intervention aimed at relieving the patient’s distress). The boundaries can potentially become blurred when treatment is a component of a criminal sentence, such as in cases where offenders are required to attend treatment while on probation. However, treatment and probation are not mutually exclusive, nor are court ordered interventions necessarily coercive. It is important to remember that courts are requiring therapy, not programs. Treatment  programs merely provide the mechanism for change if the client chooses to comply with the order of the court. Ultimately, clients always have a choice about whether or not to enroll or participate in treatment, and the court, not the treatment program, imposes the consequences of those choices. On the other hand, it could be argued that "involuntary therapy" is an oxymoron. Coercion is the use of force, intimidation, or threats to dictate the actions of others (American Heritage 2000). Coercion can be a form of motivation, and is often used for that  purpose in various contexts to compel an act or choice. Coercive helping relationships exist when there is a  power imbalance between the practitioner and the client (Peterson 1992). In court ordered treatment, an "unequal  power balance in the relationship and the omnipresent threat of consequences to the client makes full consent impossible" (Peterson:124) and, therefore, volunteerism is compromised.  Nonetheless, there are four basic purposes to criminal sentencing: retribution (punishment or reprisal for wrongdoing), deterrence   (to discourage others from committing crimes), rehabilitation (to help criminals change their behavior and become responsible citizens), and incapacitation (to protect society from dangerous, lawbreaking persons). The justice system enlists mental health professionals to assist with the goal of rehabilitation. Clearly, rehabilitative criminal justice differs from the traditional psychotherapy commonly sought by other types of patients, and requires careful consideration by the therapist of ethical dilemmas and the potential abuse of power. Over the past decade, the mental health professions have revised and modified their codes of ethics to incorporate the increasing reality of court ordered service provision. Both the APA (2003) and the NASW (1999) codes of ethics acknowledge that psychologists and social workers must adhere to specific standards for working with mandated clients. The Code of Ethics  promulgated by the Association for the Treatment of Sexual Abusers (ATSA 2001b) specifically addresses the specialized treatment of sex offenders. Far from being encouraged to breach ethical codes, sex offender treatment providers are expected to acknowledge the potential for coercion in court ordered treatment and to balance the best interests of the client with those of the community (ATSA 2001b). To suggest, as Glaser did, that sex offender treatment is not in a patient’s best interest is simply illogical. To suggest that clear breaches of traditional codes of ethics pervade all aspects of sex offender programs is equally erroneous. By illustration, an itemized examination and refutation of Glaser’s points follows. RESPONSE TO GLASER’S POINTS 1. The primary measure of treatment success is that of the protection of society rather than alleviation of the offender’s suffering. Glaser correctly noted that treatment effectiveness studies have focused almost exclusively on measuring recidivism rates, and that other measures of client  progress or satisfaction have been largely ignored. We agree that measuring the skills, behaviors, and attitudes that clients gain through treatment should be acknowledged as an important measure of success. Moreover, few studies have surveyed consumers of sex offender treatment services to elicit feedback about what would be most beneficial to them, although this type of research is beginning to emerge (Garrett, Oliver, Wilcox, and Middleton 2003). More research is needed to determine the specific ways that current practice can  be more helpful to clients (Hanson, Gordon, Harris, Marques, Murphy, Quinsey, and Seto 2002). Though Glaser’s points are good ones, we contend that decreased recidivism as a measure of treatment success does reflect the dual need to protect society and reduce offenders’ suffering. Community safety and alleviation of client distress are goals that can be mutually rewarding for patients and society. Although the behavior of some sex offenders is ego-syntonic, most are indeed disturbed by their behavior and desire to improve their functioning in law-abiding activities and age-appropriate relationships. Whether they are motivated to become sexually healthy adults, or simply want to avoid being re-arrested or incarcerated, many sex offenders articulate a wish to change the self-destructive patterns that led them to hurt others and suffer personal consequences. Many sex offender clients who are court ordered to receive treatment are initially angry, resistant, and unwilling to admit responsibility for their crimes. But as they  become engaged in treatment, those same clients often  begin to stop regarding the therapist as intrusive in their   J. Levenson & D. D’Amora / Western Criminology Reivew, 6(1) 145-153 (2005) 147 lives. Ultimately, many offenders find that their lives  begin to improve and that the maladaptive behaviors that led to their offenses have lessened considerably. They often report feeling more in control of their lives. Through treatment, they learn to substitute inner controls for external ones, and sex offender clients who were recently surveyed reported that they found this  process to be empowering and rewarding (Garrett, Oliver, Wilcox, and Middleton 2003). The goal of the offender to create a more promising future for himself is thus incorporated into the evidence- based modalities of sex offender treatment. Treatment offered to incarcerated offenders is intended to increase the likelihood that inmates will make a satisfactory community adjustment following release. Treatment offered to probationers is intended to increase the offender’s likelihood of remaining safely in the community. Both of these forms of treatment are designed to help offenders succeed as well as to protect society. Reduced recidivism is certainly the outcome most widely cited in the research literature, but by no means is it the only measure of treatment success. Although difficult to empirically investigate, therapists assess changes in behavior and thinking as measures of treatment progress. Relapse prevention techniques help offenders learn to identify the chains of thoughts, feelings, and behaviors that culminate in the commission of a sex offense (Marques and Nelson 1989). Once they can identify their offense patterns, offenders work on mastering alternative coping strategies with which to intervene in the cycle and stop the progression of unlawful and destructive sexual  behaviors. In addition, Marshall et al. (1999) proposed that by changing the contingencies of reinforcement to help clients better meet their emotional needs, treatment can focus on helping clients move toward positive and rewarding behavior rather than simply avoiding the negative consequences of sex offending behavior. As clients begin to understand the emotional needs that have been met through sexual assault, they can develop more fulfilling strategies for meeting those needs in healthy and adaptive ways (Morin and Levenson 2002). Glaser might call this approach “paternalism” and suggest that we are presumptuous and patronizing in our  belief that we know what is best for clients. And to some extent he would be right. Courts and society have  become less willing to tolerate the behavior of persons who threaten the safety of the community. Therapists are used as instruments of change. Through treatment future criminal acts are prevented, while sex offender clients are helped to reduce the distress (and avoid the consequences) created by engaging in unhealthy or unlawful behavior. We do believe (paternalistically,  perhaps) that helping clients to improve their interpersonal functioning does indeed serve a client’s  best interest. 2. Treatment, to be effective, must usually be involuntary. Glaser argued here that prominent scholars in the field boldly advocate for coercive therapy. It is true that researchers and practitioners recognize that many sex offenders will not seek treatment voluntarily because they enjoy what they are doing and do not want to stop. Thus, the vast majority of sex offenders enter therapy only after offenses are detected, reported, and sanctioned. We suggest, however, that some sex offenders who desire to change their behavior are reluctant to seek help  because to do so will almost surely result in legal consequences. This is an unfortunate dilemma for both clients and practitioners, but sex offender programs do not create this conundrum, nor is it unique to sex offender therapists. Every social worker, psychologist,  psychiatrist, family therapist, or mental health counselor in the U.S. (and in many other countries) is required by law to report suspected abuse to the proper authorities. In fact, to encourage voluntary treatment by which clients might very well incriminate themselves would be unethical. Glaser misreads the suggestion made by Marshall et al. (1999) that treatment should be combined with incarceration. Marshall does not advocate for coercive therapy; rather, he advocates for interventions that  promote personal responsibility, reinforced through negative sanctions (punishment) combined with positive reinforcement (treatment gains). Moreover, Glaser’s analogy of sex offender treatment to involuntary commitment of the mentally ill is a poor one. It is true that involuntary psychiatric treatment or civil commitment is typically an intervention of last resort, the primary goal of which is to prevent future harm. Sex offenders, on the other hand, have already committed a criminal act causing harm to others, and rehabilitative treatment is a part of the sentence imposed. 3. Effective treatment requires that confidentiality be breached. As Glaser accurately noted, it is routine for sex offender therapists to offer limited confidentiality. However, we believe that this practice does not constitute a breach unless the client is denied informed consent. If the client signs a release form allowing the exchange of information and explaining its purpose, then confidentiality is not compromised. As noted above, ATSA, APA, and NASW codes of ethics all address the bounds of confidentiality with non-voluntary clients and in cases where threat of harm is  present. Specifically, NASW (1999) requires that “social workers should inform clients, to the extent   An Ethical Paradigm for Sex Offender Treatment 148  possible, about the disclosure of confidential information and the potential consequences, when feasible before the disclosure is made. This applies whether social workers disclose confidential information on the basis of a legal requirement or client consent” (section 1.07 (d)). The APA (2003) similarly states that “when psychological services are court ordered or otherwise mandated, psychologists inform the individual of the nature of the anticipated services, including whether the services are court ordered or mandated and any limits of confidentiality, before  proceeding” (section 3.10 (c)). We are all familiar with professional ethics and state laws allowing exceptions to confidentiality under specific circumstances which involve threat of harm to oneself or others. It is also universally accepted that abuse of children and disabled or elderly adults must be reported to protective service agencies. When a clinical assessment reveals risks that may not fall under traditional duty to warn or mandatory reporting exceptions, the evaluator must practice within the  bounds of confidentiality while attempting to facilitate community safety and avoid collusion with abusive clients. The clients’ consent to the exchange of information between professionals serves to protect vulnerable children and women and also serves to  protect the clients from the consequences of engaging in self-destructive behavior that they may be unable to manage successfully by themselves.   Sex offender treatment information is often shared  between probation officers, child protection workers, and the court in an effort to enhance collaborative treatment and supervision. Ultimately, this collaboration is intended to help the client to improve self-management and self-regulation, and facilitates an exchange of information that allows others to support the client in his recovery. Sharing of information should, of course, always be done in accordance with  prevailing ethical principles and statutory requirements. A non-voluntary client can have a therapeutic experience if safeguards are in place for the sharing of information. In the United States, sex offender treatment is bound by federal HIPPA regulation which specifies the limitations of disclosures to any outside parties unless approved by the client. 4. Generally, the offender must not be allowed any choice of therapy or therapist. Glaser argued that assigning sex offenders to specific therapists is dogmatic and that it interferes with clients’ right to self determination. It is true that sex offenders are usually required to seek treatment from “approved” providers. While this practice is perhaps seemingly narcissistic or grandiose on the part of sex offender treatment specialists, it is necessary. Ethical sex offender treatment requires training and expertise unfamiliar to most mental health professionals. If one had a brain tumor, he would not seek medical services from a family practitioner or a dermatologist. It is widely accepted in the medical profession that a license to practice medicine does not imply expertise in the treatment of all medical conditions. The same is true in mental health, where clinicians develop experience and expertise regarding a particular problem area or client  population. In fact, mental health professional codes of ethics clearly warn against practicing outside of one’s area of expertise (American Psychological Association 2003; National Association of Social Workers 1999). We argue that the treatment of sex offenders by unqualified practitioners constitutes an ethical violation. The treatment of sex offenders comes with a higher risk of liability for practitioners, and a high risk of harm to the client and others if clients recidivate. Inferior treatment may lead to increased recidivism,  perpetuating the myth that sex offender treatment is not effective. To promote the client’s right to self-determination, responsible referral sources often allow clients to choose from multiple qualified sex offender  programs if more than one exists in a particular geographical area. Although Glaser somewhat facetiously noted a “morbid and irrational preoccupation with the ability of sex offenders to manipulate gullible and vulnerable therapists” (Glaser:146), he acknowledged elsewhere that: manipulative behaviour and therapist shopping are hallmarks of sex offenders, particularly those who are trying to deny or minimise their behaviours. They may well use concerns over their rights as excuses for avoiding important therapeutic issues (Glaser:151). It is for these very reasons that sex offenders are often referred by courts or probation officers to sex offender specific programs that are known to have the knowledge and experience necessary to effectively address such resistance. 5. Offenders may be forced to accept therapy from non-clinicians or unqualified staff. Glaser stated: “A large number of sex offender treatment programs rely heavily on the use of prison officers and other unqualified staff” (Glaser:146). He cites a 1996 ATSA policy statement to support this claim, which he appears to have misinterpreted. In the  position paper posted on ATSA’s website titled  Reducing Sexual Abuse Through Treatment and  Intervention with Abusers  (Association for the Treatment of Sexual Abusers 1996), the following statement appears: “Following the prison term, a correctional officer supervises and monitors the   J. Levenson & D. D’Amora / Western Criminology Reivew, 6(1) 145-153 (2005) 149 individual in the community.” This statement is not meant to imply that correctional officers provide treatment, but that most sex offenders, when released from incarceration, are sentenced to a period of  probationary supervision in which a parole officer monitors compliance with court ordered conditions, including treatment. The best current information about the qualifications of treatment providers comes from a survey conducted in 2002 by the Safer Society Foundation, which analyzed data from nearly 1,000 U.S. sex offender  programs (McGrath, Cumming, and Burchard 2003). Overall, community-based programs treating adult sex offenders reported that 89 percent of treatment staff held a Master’s or Doctorate degree. In residential programs (which presumably included prison-based programs), about 26 percent of treatment staff held a graduate degree, and 13 percent held a Bachelor’s degree. The qualifications of non-degreed staff were unknown, as was their specific role in providing treatment related services. Certainly, it is preferable to have clinically trained mental health professionals providing therapeutic services. Overall, 86 percent of adult sex offender programs are community based, and so it appears that the vast majority of clients are served by clinicians with graduate degrees (McGrath, Cumming, and Burchard 2003). The ATSA code of Ethics (ATSA 2001b), first  published in 1993 and revised in 1997 and 2001, has an entire section devoted to members’ training and expertise (Section 4). Moreover, Section A of the ATSA Practice Standards and Guidelines (ATSA 2001a) spans three pages outlining training and qualifications. Although ATSA recognized that the educational and  professional backgrounds of its members are diverse and multi-disciplinary, and that practice is regulated by state licensure boards, it emphasized that competent  practice is reflected by a combination of academic coursework, continuing education, and practice experience. Members providing clinical services are required to have at least 2,000 supervised hours of direct client contact, and usually possess a graduate degree or specific training and experience. So, although non-clinicians or unqualified staff can be found in all areas of mental health, the published ethics and standards of sex offender treatment clearly define and emphasize the importance of competent practice. 6. Effective therapy requires multiple other infringements on an offender’s dignity and autonomy. Glaser first pointed out that “clients are not allowed to deny their offending behaviors…and are routinely required to waive that right or else be regarded as untreatable and face harsher penalties” (Glaser:146).  Next, he asserted that sex offender clients are required to incriminate themselves by admitting to undetected criminal activities. Finally, Glaser suggested that sex offender programs control clients in a manner akin to  brainwashing (Glaser:146): The therapist remains actively in control and the  price for the offender of questioning the goals set  by the therapist is a heavy one: possible expulsion from the program or at least an unfavourable report to a court or parole board. Although few writers in the field have acknowledged it, this sort of control comes perilously close to brainwashing, with the aversive stimulus being the threat of further  punishment if the offender does not comply. …They clearly infringe upon an offender’s right to self determination as enshrined in all of the ethical codes cited above. We contend that all three of these claims can be countered based on ethical, legal, and therapeutic  principles. First, it is important to explore Glaser’s assertion that clients in treatment are required to “waive their right” to deny their crimes. It is true that most sex offender programs require clients to admit their  behaviors as a first step in treatment. But offenders in court-ordered treatment have already relinquished the “right” to deny when they pleaded guilty to a sex crime and agreed to a sentence which included treatment -- often in exchange for reduced incarceration. If a client claims to have been wrongly convicted by a jury, his denial is more properly addressed in a legal setting rather than a clinical setting. Of course, clients have the right to choose the extent to which they disclose information in treatment. But if denial is a manifestation of resistance to treatment, then it must be addressed as such. Denial is a common problem in sex offenders  presenting for treatment, and most practitioners agree that it is necessary for offenders to overcome denial in order for treatment to be effective (Marshall, Thornton, Marshall, Fernandez, and Mann 2001). Offenders often  begin treatment with some degree of denial, ranging from denial of the facts of the case, to minimization or rationalization of the offense, to distorted attributions of responsibility (Schneider and Wright 2001; Schwartz 1995; Trepper and Barrett 1989). Although Hanson and Bussiere (1998) found no correlation between denial and recidivism, the role and relevance of denial has not  been fully clarified and further studies of denial’s role in treatment success and risk prediction are needed (Lund 2000). New research has suggested that denial is associated with lower levels of therapeutic engagement and treatment progress (Levenson and Macgowan 2004).
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